Appeals Council

[Deleted]

For current ALJ’s: 

    Many of us share a common frustration when our decisions are returned by the Appeals Council. Sometimes these decisions are returned for a valid reason. I actually appreciate it when someone points out that I made an error. I don’t like to make mistakes, and that’s something I can learn from. 

    However, the AC has also been known to remand a decision for (let’s be nice)…less than valid reasons. I began receiving a lot of these over a short time, and many of them were (let’s be nice)…ridiculous. My frustration was: what do you do about an AC decision that appears just plain wrong?
 
    I began complaining about the AC to anyone that would listen, management, union, etc. No one really seemed to know what to do. Last week I received a pleasant response from the Deputy Chair of the Appeals Council. She informed me of a memo which I have attached in part below. There IS a process by which an ALJ can bring to the AC’s attention an aberrant remand. I note that bringing it to their attention for training purposes is pretty much all it does. However, I am optimistic that it’s a start. My goal is to start a steady stream of AC remands back to the AC in the hopes that someone will tighten up the process there and that AC remand quality will improve. I urge all my fellow ALJ’s to do the same.

"Under this process, ALJs will prepare an e-mail with the claimant name and social security number of the case in question and a brief statement identifying the problem with the remand order and send it to a designated mailbox in the Regional Chief ALJ’s office (designated regional mailboxes are listed at the end of this memo). Personnel in that office will decide whether to forward the remand for further consideration to the Division of Field Procedures (DFP) in the Office of the Chief ALJ, |||ODAR OCALJ DFP. The RO will advise the ALJ that it forwarded the remand or provide the reason it did not. DFP will decide whether to forward the remand to the ALJ panel. DFP will advise the RO (which will share with the referring ALJ) that it referred the remand for further consideration to the ALJ panel or provide the reason it did not. (If the remand in question involves a paper file, the remand order and any supporting documentation should be scanned into a pdf file and attached to the e-mail setting forth the problem.)

The ALJ panel will review the remand order, and the underlying facts, as necessary, and decide whether to forward it to the AAJ panel for discussion. It will do so if a majority of the ALJ panel believes the matter should be forwarded. If the decision is not unanimous, the ALJ panel will note the differing views in its referral. The panels of AAJs and ALJs will meet quarterly by electronic means to review the remands forwarded by the ALJ panel and decide on an appropriate response.

We have appointed Lyle Olson as the lead ALJ and Mark Milett as the lead AAJ for this initiative. The ALJs appointed to the panel are: David Ettinger, Julia Gibbs, Joan Knight and John Rolph. The AAJs are: Deana Ertl-Lombardi, Eileen Farmer, Christopher Hargis and Linda Kalet.

Conclusions that the ALJ and AAJ panel might make about the remands they review include, but are not limited to:

• the remand was appropriate as issued
• the remand was appropriate, but could have been clearer
• the remand was appropriate, but of questionable necessity given the insignificance of the error
• a final revised decision should have been issued rather than a remand
• a remand was not appropriate and should not have been issued

The panel might also recommend training or issuance of a policy or process clarification. We will communicate the conclusions and recommendations made by the panel through a quarterly publication that we will share with both the hearing and appellate operations. We intend to review this initiative after one year of operation and determine whether it is useful and worth continuing.

We do not intend this new feedback initiative to delay adjudication of a case by an ALJ. ALJs will continue to process the underlying case after forwarding the remand for consideration. The purpose of this initiative is to give ALJs the opportunity to offer feedback to the Appeals Council in certain types of cases, not to amend or rescind the remand in an individual case. The latter can be accomplished through the existing Motion for Clarification process.

Feedback is critical to our performance at every level, and we look forward to your cooperation and participation in this groundbreaking initiative from which we can all learn.


Regional Mailboxes for Remand Feedback Initiative

Region 1: #ODAR R1 Remand Feedback
Region 2: ^ODAR R2 Programs (include “Remand Feedback Initiative” in the subject line)
Region 3: ^ODAR R3 Remand Feedback Initiative
Region 4: ^ODAR Atlanta RO Remand Feedback
Region 5: ^ODAR R5 Remand Initiative
Region 6: ^ODAR R6 ALJ Comments
Region 7: ^ODAR R7 Remand Feedback Initiative
Region 8: ^ODAR R8 Remand Feedback
Region 9: ^ODAR San Francisco RO Remand Feedback
Region 10: ^ODAR RX Remand Feedback
NHC: |||ODAR OCALJ NHC Cent[/font]ral Office"

[ssaer]

Jul 16, 2013 8:37:00 GMT -5 robg said:

For current ALJ’s: 

    Many of us share a common frustration when our decisions are returned by the Appeals Council. Sometimes these decisions are returned for a valid reason. I actually appreciate it when someone points out that I made an error. I don’t like to make mistakes, and that’s something I can learn from. 

    However, the AC has also been known to remand a decision for (let’s be nice)…less than valid reasons. I began receiving a lot of these over a short time, and many of them were (let’s be nice)…ridiculous. My frustration was: what do you do about an AC decision that appears just plain wrong?
 
    I began complaining about the AC to anyone that would listen, management, union, etc. No one really seemed to know what to do. Last week I received a pleasant response from the Deputy Chair of the Appeals Council. She informed me of a memo which I have attached in part below. There IS a process by which an ALJ can bring to the AC’s attention an aberrant remand. I note that bringing it to their attention for training purposes is pretty much all it does. However, I am optimistic that it’s a start. My goal is to start a steady stream of AC remands back to the AC in the hopes that someone will tighten up the process there and that AC remand quality will improve. I urge all my fellow ALJ’s to do the same.

"Under this process, ALJs will prepare an e-mail with the claimant name and social security number of the case in question and a brief statement identifying the problem with the remand order and send it to a designated mailbox in the Regional Chief ALJ’s office (designated regional mailboxes are listed at the end of this memo). Personnel in that office will decide whether to forward the remand for further consideration to the Division of Field Procedures (DFP) in the Office of the Chief ALJ, |||ODAR OCALJ DFP. The RO will advise the ALJ that it forwarded the remand or provide the reason it did not. DFP will decide whether to forward the remand to the ALJ panel. DFP will advise the RO (which will share with the referring ALJ) that it referred the remand for further consideration to the ALJ panel or provide the reason it did not. (If the remand in question involves a paper file, the remand order and any supporting documentation should be scanned into a pdf file and attached to the e-mail setting forth the problem.)

The ALJ panel will review the remand order, and the underlying facts, as necessary, and decide whether to forward it to the AAJ panel for discussion. It will do so if a majority of the ALJ panel believes the matter should be forwarded. If the decision is not unanimous, the ALJ panel will note the differing views in its referral. The panels of AAJs and ALJs will meet quarterly by electronic means to review the remands forwarded by the ALJ panel and decide on an appropriate response.

We have appointed Lyle Olson as the lead ALJ and Mark Milett as the lead AAJ for this initiative. The ALJs appointed to the panel are: David Ettinger, Julia Gibbs, Joan Knight and John Rolph. The AAJs are: Deana Ertl-Lombardi, Eileen Farmer, Christopher Hargis and Linda Kalet.

Conclusions that the ALJ and AAJ panel might make about the remands they review include, but are not limited to:

• the remand was appropriate as issued
• the remand was appropriate, but could have been clearer
• the remand was appropriate, but of questionable necessity given the insignificance of the error
• a final revised decision should have been issued rather than a remand
• a remand was not appropriate and should not have been issued

The panel might also recommend training or issuance of a policy or process clarification. We will communicate the conclusions and recommendations made by the panel through a quarterly publication that we will share with both the hearing and appellate operations. We intend to review this initiative after one year of operation and determine whether it is useful and worth continuing.

We do not intend this new feedback initiative to delay adjudication of a case by an ALJ. ALJs will continue to process the underlying case after forwarding the remand for consideration. The purpose of this initiative is to give ALJs the opportunity to offer feedback to the Appeals Council in certain types of cases, not to amend or rescind the remand in an individual case. The latter can be accomplished through the existing Motion for Clarification process.

Feedback is critical to our performance at every level, and we look forward to your cooperation and participation in this groundbreaking initiative from which we can all learn.


Regional Mailboxes for Remand Feedback Initiative

Region 1: #ODAR R1 Remand Feedback
Region 2: ^ODAR R2 Programs (include “Remand Feedback Initiative” in the subject line)
Region 3: ^ODAR R3 Remand Feedback Initiative
Region 4: ^ODAR Atlanta RO Remand Feedback
Region 5: ^ODAR R5 Remand Initiative
Region 6: ^ODAR R6 ALJ Comments
Region 7: ^ODAR R7 Remand Feedback Initiative
Region 8: ^ODAR R8 Remand Feedback
Region 9: ^ODAR San Francisco RO Remand Feedback
Region 10: ^ODAR RX Remand Feedback
NHC: |||ODAR OCALJ NHC Cent

[/font]ral Office"



[/quote]

The problems with this procedure are numerous:

(1) The procedures are multilayered and complex, involving review of a challenged remand by multiple entities in succession before it is even brought to the attention of the relevant decisionmakers.

(2) As noted in a discussion on "In Chambers" (an Agency-moderated discussion forum for SSA ALJs) under the heading "Remand Feedback Initiative," the time periods involved in even receiving an acknowledgement from each of the various levels, let alone a substantive response, are enormous. It is clear that this is not viewed as a high priority by the Agency.

(3) It does not appear that even a single one of the quarterly reports contemplated by this initiative has been issued, let alone the four reports that should have been issued in the year since this initiative was announced.

[deltajudge]

8-)All of the above speaks for itself. Any solution to any problem the paper pushers try to resolve further complicates it. The appeals judges are not AlJs, thus not under the APA. They are overwhelmed. Back in the day, ALJs were detailed to the AC when the appeals council was just members. One of my friends volunteered,and the first day on the job, was ushered into a office piled floor to ceiling with files. He had a two week detail, with no way to plow thru all those cases. Analysts wrote the remands based on brief review by the members. Probably the same. Worst remand I got from the AC was on an overpayment case. I was instructed use a VE.

[moopigsdad]

Jul 16, 2013 14:21:35 GMT -5 deltajudge said:

8-)All of the above speaks for itself. Any solution to any problem the paper pushers try to resolve further complicates it. The appeals judges are not AlJs, thus not under the APA. They are overwhelmed. Back in the day, ALJs were detailed to the AC when the appeals council was just members. One of my friends volunteered,and the first day on the job, was ushered into a office piled floor to ceiling with files. He had a two week detail, with no way to plow thru all those cases. Analysts wrote the remands based on brief review by the members. Probably the same. Worst remand I got from the AC was on an overpayment case. I was instructed use a VE.

At least the AC didn't suggest a Medical Adviser, too.

[trekker]

This is not a perfect process. All of us on each side make mistakes. Here are a few of my favorite from ODAR hearing notices:

1. VE scheduled for a child's case
2. VE scheduled for an O/P or ISM case.
3. 5 step analysis for a CDR.
4. "We will determine whether or not you are disabled" for a 75 year old US citizen.

And then there is DDS who says you are limited to light work and because you are not yet 55, you are not disabled -- decision dated one month before the claimant turns 55. What a waste of time. Claimant waits a year for the hearing and is even willing to amend the onset date. But oh no ...

I could go on but as a rep, I also make mistakes. In the 90's it could take up to 2-3 years to get any kind of decision from the AC. It appears that after a few years where the AC was issuing some decision in less than 6 months, we appear headed back toa 1+ year wait. And now that it is more difficult to file a new app after losing your case because (insert reason -- eg pro se litigant) ... Claimants are stuck between withdrawing the AC request for review and losing benefits s/he may be rightfully entitled to receive or waiting for more than a year for the AC to get to their appeal. Even if their health has deteriorated for a variety of reasons and they are entitled to reapply because of a new condition or worsening of a condition.

I have always believed that a well written decision, even one that denies my client benefits, is not one I will appeal. I have leaned a lot from those decisions and if I ever get one of the coveted ALJ positions, I will work hard to live up to expectations of the ALJ's who taught me how to be a better rep.

[moopigsdad]

Jul 16, 2013 15:06:24 GMT -5 trekker said:

This is not a perfect process. All of us on each side make mistakes. Here are a few of my favorite from ODAR hearing notices:

1. VE scheduled for a child's case
2. VE scheduled for an O/P or ISM case.
3. 5 step analysis for a CDR.
4. "We will determine whether or not you are disabled" for a 75 year old US citizen.

And then there is DDS who says you are limited to light work and because you are not yet 55, you are not disabled -- decision dated one month before the claimant turns 55. What a waste of time. Claimant waits a year for the hearing and is even willing to amend the onset date. But oh no ...

I could go on but as a rep, I also make mistakes. In the 90's it could take up to 2-3 years to get any kind of decision from the AC. It appears that after a few years where the AC was issuing some decision in less than 6 months, we appear headed back toa 1+ year wait. And now that it is more difficult to file a new app after losing your case because (insert reason -- eg pro se litigant) ... Claimants are stuck between withdrawing the AC request for review and losing benefits s/he may be rightfully entitled to receive or waiting for more than a year for the AC to get to their appeal. Even if their health has deteriorated for a variety of reasons and they are entitled to reapply because of a new condition or worsening of a condition.

I have always believed that a well written decision, even one that denies my client benefits, is not one I will appeal. I have leaned a lot from those decisions and if I ever get one of the coveted ALJ positions, I will work hard to live up to expectations of the ALJ's who taught me how to be a better rep.

trekker the AC on average is taking between 18 to 24 months for decisions in my area. I don't know where you are located, but if your AC appeals are only taking slightly more than 12 months consider yourself lucky. Yes, it becomes a real issue when the client develops another disability or a much worsening of their underlying condition and you have to decide whether to drop the AC appeal or file a brand new disability claim. Unless you can be guaranteed a re-opening and it is a SSDI claim or a DLI issue is possible, then you have no choice, but to stay at the AC. If a straight SSI claim, I usually just have the client file a new application because we can probably have another ALJ Hearing prior to ever receiving an AC decision in my area of the U.S..

[trekker]

I just started noticing the increased times this year. About 3 years ago, we were getting decisions up or down in about six months. Then poof, that stopped happening. The problem for some of the SSI only clients is the past due medical bills and owning their own home (sometimes because they inherited it). It can be a real crap shoot. And then there are the complicated SSI couple issues. If some of us on this board are unhappy about the process, imagine what it must be like for the claimants. Just saying.

[bowser]

I've never understood what the big deal was with AC remands. Sure, a good percentage (most?) of mine impress me as unwarranted. But they are just another disposition - and you've already done most of the prep.

[Deleted]

        Well, I understand your point Bowser, about 'going with the flow.' It's just a remand, deal with it and move on.

        But. I resent having to 'churn' these cases over and over. It’s a tragic waste of time and it gives (sometime undeserving) claimants multiple bites at the apple while more worthy claimants continue to wait in line. That’s very frustrating for me. When a claimant doesn’t bother to show up and I dismiss his case, that ought to have some teeth in it. It really doesn’t, with the AC finding any reason at all to send it back.

The AC recently remanded to me: 

    "The Administrative Law Judge scheduled a hearing and sent a notice to the claimant about when and where the hearing would be held. The claimant did not appear at the time and place set for the hearing and the Administrative Law Judge found that the claimant did not give a good reason for not appearing. Therefore the Administrative Law Judge dismissed the request for hearing under 20 CFR 416.1457(b). 

    The Appeals Council notes the claimant was unrepresented at the time of the hearing. In his request for review, the claimant does not say why he did not attend the scheduled hearing. He does have a new address on his appeal and the Notice to Show Cause for Failure to Appear letter was returned by the post office. Therefore, it cannot be established the claimant was aware of the scheduled hearing."

      I do not wish to belabor an obvious point, but in this case the claimant did not provide a reason why he did not attend his hearing. Without a reason as to why the claimant failed to appear, the AC simply made one up. They do not know that the claimant did not receive his notice. They are simply guessing. The claimant appealed the decision, so would not a better guess be that he received his notice and his dismissal? I am required to determine if the claimant has shown good cause for failing to appear. In this case, he provided no cause at all. Wherein lays the error of law or abuse of discretion in this instance? Is it appropriate to place the burden of proof on the ALJ or the field office to “establish that the claimant was aware of the scheduled hearing”? Does the claimant bear no burden in demonstrating a legitimate reason why he did not appear? Regardless, because of this remand, the claimant occupied a slot on my docket for the second time. He then failed to appear. Again.

That's frustrating.  

[deltajudge]

8-)Exactly why I did not jump thru the hoops when a claimant failed to appear by sending a show cause, even though I mostly restricted it to detail cases, did it a lot on local cases involving unrepresented claimants. It was always funny, they got the dismissal, and appealed that. AC never questioned that.

[cougarfan]

Jul 17, 2013 8:19:04 GMT -5 robg said:

        Well, I understand your point Bowser, about 'going with the flow.' It's just a remand, deal with it and move on.

        But. I resent having to 'churn' these cases over and over. It’s a tragic waste of time and it gives (sometime undeserving) claimants multiple bites at the apple while more worthy claimants continue to wait in line. That’s very frustrating for me. When a claimant doesn’t bother to show up and I dismiss his case, that ought to have some teeth in it. It really doesn’t, with the AC finding any reason at all to send it back.

The AC recently remanded to me: 

    "The Administrative Law Judge scheduled a hearing and sent a notice to the claimant about when and where the hearing would be held. The claimant did not appear at the time and place set for the hearing and the Administrative Law Judge found that the claimant did not give a good reason for not appearing. Therefore the Administrative Law Judge dismissed the request for hearing under 20 CFR 416.1457(b). 

    The Appeals Council notes the claimant was unrepresented at the time of the hearing. In his request for review, the claimant does not say why he did not attend the scheduled hearing. He does have a new address on his appeal and the Notice to Show Cause for Failure to Appear letter was returned by the post office. Therefore, it cannot be established the claimant was aware of the scheduled hearing."

      I do not wish to belabor an obvious point, but in this case the claimant did not provide a reason why he did not attend his hearing. Without a reason as to why the claimant failed to appear, the AC simply made one up. They do not know that the claimant did not receive his notice. They are simply guessing. The claimant appealed the decision, so would not a better guess be that he received his notice and his dismissal? I am required to determine if the claimant has shown good cause for failing to appear. In this case, he provided no cause at all. Wherein lays the error of law or abuse of discretion in this instance? Is it appropriate to place the burden of proof on the ALJ or the field office to “establish that the claimant was aware of the scheduled hearing”? Does the claimant bear no burden in demonstrating a legitimate reason why he did not appear? Regardless, because of this remand, the claimant occupied a slot on my docket for the second time. He then failed to appear. Again.

That's frustrating.  

Yea, I can relate. I recently heard an AC remand case where the unrepresented claimant did not show at an 10:30 a.m. Hearing, the ALJ called the claimant and offered to hold the hearing at 2:30 p.m., and the claimant did not show again. So the ALJ dismissed, claimant requested review, the AC remanded - directing the ALJ to determine why the claimant didn't show. And, yep, the claimant, despite signing the acknowledgement did not show up. What a waste of time.

[bowser]

Jul 17, 2013 21:02:23 GMT -5 cougarfan said:

What a waste of time.

Yes, it is a waste of time. But (and I'm not trying to be overly snarky here), it certainly is not the only - or the biggest - waste of time we have to deal with. And there is NOTHING an ALJ can do about it.

Think about it - just like ALJs, decision writers, SCTs, claimants' reps - the majority of the folk with the AC are undoubtedly quite good. But the dogs can really impact you. And even the good folk can make mistakes, have a bad day, etc... Same as you and me. Just part and parcel of a massive undertaking such as ours.

The first couple of times you have a thorough, well-written decision remanded should cure you of trying to write every decision in a manner that precludes remand. And after your first couple of attempts to provide "feedback" regarding clearly erroneous remands go nowhere, you might well reconsider whether you wish to continue taking on that additional task.

So instead of getting upset about it, I focus on what I can consider a positive - an easy disposition following remand - and turn my attention to things on which I might be able to have some effect.

[hod]

You know it has to be tough on both sides. We are so claimant oriented and we do not seem to apply any tougher standards when the claimant is represented. I practiced in state courts and late was late (except in VERY rare circumstances). Further the ability outside of Region 1 to continue to send in medical records makes it difficult to issue a complete decision. I think the Appeals Council is sort of stuck with the rules and regs as written. This is particularly true when the claimant or rep actually objects to something when appealing. Personally, since most people are represented-I would hold the representatives to a higher standard. Object at the time, put forth all available evidence, state your reasons for appeals. There are so many things that an ALJ has to look at, not to mention remember to check, when the writer drafts the decision-it is easy to see how some things fall through the cracks. But the returns from the AC are not always due to ALJ error-and the errors from the AC are probably no more common than the ALJ decisional errors. Everyone is just trying to get as much processed as quickly as possible. It is easy to miss a birthdate issue, particularly when the rep does not highlight it at the hearing. One month away from 55-sure pay the case under the don't apply mechanical age rules, but if no one mentions it.....

I also think that the number of appeals to the council (and I am just guessing) must be extremely high-since people seem to treat the process like a lottery ticket, - free to file-might as well- might win! So given the number of AAJ's and support staff, just going through and finding the less than supported appeals to deny takes time and no one sees how many of those go out. Then there is the craziness of the Federal Courts. Circuit Courts can really go after some particular areas of SSA regs-so it adds to the mix of fun elements. Look at how many Acquiesent Rulings that are out there and then look also at the number of changes that come down in a year. I have to say-Disability Law looks a lot different today than it did in the late 80's. (For one thing-the CFR was thinner). The slant changes with various administrations. At one time, reversals were as difficult to write as affirmations-one had to really support a pay. Then came short form reversals and now there are bench decisions. But despite all the "easier and quicker" ways to write a reversal, the new thought is-we need to support why we are paying claimants as much as why we are not paying.

I guess I am just saying that it is a tough job all around and I do not think that there are a number of people who have "an agenda". There are good and poor ALJ's-there are probably good and poor AAJ's-but mostly everyone tries. If there is an egregious error-then certainly that should be brought to someone's attention. But I think for the most part-we can just assume that everyone has a job to do and not everyone agrees on outcome.

[arkstfan]

Some of my favorite remands which aren't so much a strike against the AC but rather a function of AC like the ALJs trying to drink from a firehose and not always taking the time to do something out of the ordinary.

1. Claimant requests a May onset, decisional paragraph says March. Remanded because March and April aren't properly before the ALJ. Back in real world law we'd call it a scrivener's error and substitute a corrected decision, which is basically what I did though AC could have done it and gotten the claimant in pay status sooner.

2. A fully favorable decision by a very low pay rate ALJ is remanded and lands on my desk. The ALJ gave a less than sed RFC to a 53 year old (at onset) claimant with a multiple limitations and no PRW in the past 15 years. Remanded because there is insufficient evidence to support a manipulative limitation. I struck the manipulative limit and paid on the record because there was abundant evidence to support sedentary and a finding of disabled by applying the GRID.

3. Child's case involving a four year old. After request for hearing receive a change of address for the parent but not the child. Notice goes to the parent at the new address who signs the notice and returns it, notice to child is returned "addressee moved no forwarding". Does not appear at the hearing, does not respond to the show cause. Remanded because the child didn't get notice.

4. Redetermination claimant still in pay status. Notice goes out. Claimant does not appear. Show cause. Response, I moved from address X to address Y and didn't get the notice (yet the show cause made it). Set new hearing did not appear. Response to show cause? Moved from address Y to address X and didn't get the notice (but again mysteriously the show cause arrived). Claimant advised third attempt at hearing by phone in addition to mail. Shows up. Requests time to hire a rep. Pull my calendar pick a hearing date 30 days out and give the claimant the time and get the date and time acknowledged under oath on the record with a written note for the date and time. Hearing day arrives and claimant does not. Hoping for closure issue decision finding constructive waiver of appearance, remanded because claimant had moved from address X to address Y and never received the notice of hearing. Personally being able to move belongings back and forth between the two addresses didn't do much to help the claim of still being disabled.